Citation NR: 9635881
Decision Date: 12/16/96 Archive Date: 12/24/96
DOCKET NO. 96-19 154 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to service connection for residuals of frostbite,
both feet, and residuals of a left knee injury.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
Keith L. Salas, Associate Counsel
INTRODUCTION
The veteran had active military service from April 1955 to
April 1958.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from an November 1992 rating decision of
the Department of Veterans Affairs (VA), Waco, Texas,
Regional Office (RO), that denied service connection for
frostbite, both feet, and a left knee injury as not well
grounded.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in essence, that service connection for
residuals of frostbite of both feet, and residuals of a left
knee injury is warranted. He asserts that he has pain in the
feet and limitation of motion of the knee which are the
result of incidents during his service in Korea. He points
out that he has been nowhere else to contract frostbite other
than Korea during active duty.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that the veteran's claims for service connection
for residuals of frostbite, both feet, and residuals of a
left knee injury are not well grounded.
FINDINGS OF FACT
1. Neither frostbite nor a knee injury was diagnosed in
service; and there was no evidence of either condition upon
his discharge from the service.
2. There is no medical evidence that the veteran currently
has frostbite of the feet, or residuals thereof.
3. There is no medical evidence of a linkage between
currently demonstrated limitation of motion and complaints of
pain of the left knee and any injury and/or disease during
active service.
CONCLUSION OF LAW
The veteran's claims for service connection for residuals of
frostbite of both feet, and residuals of a left knee injury,
respectively, are not well grounded. 38 U.S.C.A. § 5107(a)
(West 1991)
REASONS AND BASES FOR FINDINGS AND CONCLUSION
In September 1995, the veteran was notified that his service
records may have been destroyed in a 1973 fire at the
National Personnel Records Center (referred to in the letter
as the Records Processing Center) in St. Louis, Missouri.
The veteran was notified of types of evidence which could
help him establish his claim.
The veteran gave the names and general geographic locations
of two individuals who, he contends, could verify frostbite
and a knee injury in service. However, no addresses were
given; and the veteran never submitted statements from the
individuals, or any medical evidence in support of his claim.
Service medical records were located for the veteran and
received by the RO in November 1995. These records consisted
only of the veteran’s entrance and discharge reports. The
documents were obviously damaged by fire. These records
contain no reference to frostbite of the feet or to a left
knee injury. On discharge from active duty, the veteran did
not complain of frostbite of the feet or of a left knee
injury. He did note either having, or having had, “foot
trouble.” He denied a “trick” or locked knee, swollen or
painful joints, and arthritis. The veteran’s discharge
physical examination was negative for any disability of the
feet or lower extremities. A report of physical examination
for the United States Army reserves dated in February 1958
showed no disability of the lower extremities. On the
veteran’s report of medical history he did not indicate any
disability of the feet, knees, or joints. He denied having
any relevant illness or injury.
The veteran’s DD-214 indicates that the veteran had foreign
and or sea service in an infantry unit and he was an
infantryman. There is nothing in the record that is
inconsistent with his report of duty in Korea.
The veteran underwent a VA examination in October 1995. The
veteran reported having frostbite of the feet. He complained
that the feet hurt all the time, especially during cold
weather. On examination the feet appeared normal with normal
hair growth. The diagnosis was a history of frostbite with
cold intolerance and pain. With respect to his left knee,
the veteran described falling about 8 feet in the snow while
in Korea, and injured his left knee. He reported to the
doctor that the knee was not given any treatment. He was
told that the knee was not broken, but no
X-rays were taken. The veteran contends that he began to
have pain and limitation of motion of the knee about three
years after the war. The examiner found 90 degrees of
flexion in the knee. X-ray examination of the left knee was
normal. The diagnosis was history of a left knee injury with
limitation of motion and complaints of pain.
Based on the aforementioned evidence a rating decision dated
in November 1995 denied service connection for residuals of
frostbite of both feet, and residuals of a left knee injury.
Additional service medical records were located and provided
to the RO in January 1996. They showed no complaint, finding
or diagnosis of any relevant abnormality.
A rating decision dated in January 1996 confirmed the denial
of service connection for the disabilities at issue.
The veteran filed a notice of disagreement in February 1996.
After a statement of the case was provided in April 1996, a
substantive appeal was filed in April 1996.
Initially, a person who submits a claim for benefits shall
have the burden of submitting evidence sufficient to justify
a belief by a fair and impartial individual that the claim is
well grounded. 38 U.S.C.A. § 5107(a).
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by wartime
service. 38 U.S.C.A. § 1110 (West 1991). Service connection
may also be granted for any disease diagnosed after discharge
when all the evidence, including that pertinent to service,
establishes that the disease was incurred in service.
38 C.F.R. § 3.303(d) (1995).
The Court of Veterans Appeals has emphasized that, in order
for a claim for service connection to be well grounded, there
must be competent evidence of current disability in the form
of a medical diagnosis, of incurrence or aggravation of
disease or injury in service in the form of lay or medical
evidence, and of a nexus between in-service injury or disease
and current disability in the form of medical evidence.
Caluza v. Brown, 7 Vet.App. 498, 506 (1995). Therefore, if a
veteran has a current disability but there is no competent
evidence linking this disability to service, the claim is not
well-grounded. Id. In the absence of proof of a present
disability there can be no valid claim. Brammer v. Brown, 3
Vet.App. 223, 225 (1992).
Where the veteran’s claim is not well grounded, there is no
duty to assist under 38 U.S.C.A. § 5107(a). Nevertheless,
the Board is mindful of the principle that, where a veteran's
service medical records may be missing, the VA has a
heightened duty. O’Hare v. Derwinski, 1 Vet.App. 365, 367
(1991).
In this case, pertinent service medical records were
recovered, albeit damaged. The veteran alleges that he had
relevant treatment which is not reflected in the records.
Nevertheless, all realistic efforts have been made to locate
existing service medical records with maximum results. The
veteran was informed of other sources of probative evidence
which could be submitted. He has not submitted any more
evidence in support of his claim. The VA has satisfied its
limited duty to inform the veteran of what was needed to
satisfy a plausible claim in this case, and done its part to
the appropriate and feasible extent. See 38 U.S.C.A. §
5103(a) (West 1991); Franzen v. Brown, 9 Vet.App. 235 (1996);
Linsday v. Brown, 9 Vet.App. 225 (1996); Robinette v. Brown,
8 Vet.App. 69 (1995)..
Because the medical evidence does not show a current
disability of the feet, or any sign or symptom of frostbite
residuals thereof, the Board must conclude that the veteran's
claim for service connection for frostbite of the feet is not
well grounded. The veteran’s claim for service connection for
a knee disability is not well grounded because there is no
medical evidence to link his current complaints of pain and
limitation of flexion to 90 degrees of the left knee to any
disease or injury during active service. Therefore, the
veteran’s claims must be denied. 38 U.S.C.A. § 5107(a);
Caluza v. Brown, 7 Vet.App. 498, 506 (1995); Brammer v.
Brown, 3 Vet.App. 223, 225 (1992).
As the veteran probably had combat service in Korea
(consonant with the pertinent evidence of record), and his
claimed disabilities are consistent with the conditions and
circumstances of combat, his arguments that his disabilities
were sustained during such service will be accepted as proof
of service connection, despite the fact that official records
do not reflect any such incurrence or aggravation, absent
clear and convincing evidence to the contrary. 38 U.S.C.A.
§ 1154(b). Nevertheless, the decision here that the claims
are not well grounded is sound because there is sufficient
service medical evidence that the claimed disabilities were
not present during active service, concomitant with combat or
otherwise. The current medical evidence does not show any
disability from frostbite of the feet or any old trauma of
the left knee that has resulted in complaints of pain and the
specified degree of limitation of motion, which clearly and
convincingly were not shown during or until more than 35
years following active service. The combined effect of all
the available objective medical evidence is clearly and
convincingly against well grounded claims in this case.
(CONTINUED ON NEXT PAGE)
ORDER
The claims not being well grounded, service connection for
residuals of frostbite, and residuals of a left knee injury,
respectively, are denied.
R. K. ERKENBRACK
Acting Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402,
102 Stat. 4105, 4122 (1988). The date which appears on the
face of this decision constitutes the date of mailing and the
copy of this decision which you have received is your notice
of the action taken on your appeal by the Board of Veterans'
Appeals.
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